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April 27, 2015
This is our summary of some of the key legal developments across a range of sectors covering the period 17 to 23 April 2015.
It is intended for reference purposes only and does not constitute definitive advice. Links to the original source materials are included where there are no restrictions in terms of access. References may also be made to sources that require separate registration or subscription. A link to a source does not necessarily imply endorsement of the source or the material provided through the link. For further information on any of the matters discussed in this summary please contactAlexander Ross. If you have any comments, queries or suggestions please contact us at comments. All suggestions and comments are most welcome.
Ofcom to hold Stakeholder Forum on its Strategic Review of Digital Communications.
European Parliament and EU Council back European Commission trade mark reform package.
Police Intellectual Property Crime Unit (PIPCU) announces over ten million website diversions as industry marks World IP Day 2015.
Ofcom publishes update on spectrum above 6 GHz to help lay foundations for next generation mobile.
Internet Services Providers’ Association gives verdict on three main political parties’ manifestos ahead of General Election.
Article 29 Data Protection Working Party writes to electronic identification and trust services (EIDAS) expert group on new Regulation.
Article 29 Data Protection Working Party holds its 100th plenary meeting.
Ofcom summons provider of local TV services to compliance meeting.
Featured Artists Coalition seeks views on PRS For Music consultation on UK live performance tariff.
Committee of Advertising Practice publishes advice on advertising prices for music festivals.
YouGov poll shows public want tougher regulation of the press.
British Film Institute publishes figures showing great first year for Video Games Tax Relief.
Committee of Advertising Practice reminds marketers of rules on using the word “free”.
Ofcom to hold Stakeholder Forum on its Strategic Review of Digital Communications.
Ofcom has announced that it is holding a stakeholder forum on Monday 11 May 2015 to outline the scope of its Strategic Review of Digital Communications and to invite feedback.
Ofcom says that the review will examine competition, investment, innovation and the availability of products in the broadband, mobile and landline markets. Terms of Reference for the review were published on 12 March 2015.
Ofcom is encouraging stakeholders with an interest in the digital communications sector to attend the session, which offers Ofcom an opportunity to gather views on the review and shape the discussion document due for publication in the summer.
Sharon White, Ofcom’s new Chief Executive, will introduce the forum at Ofcom’s Riverside House office. Following a brief presentation there will be an opportunity to comment and ask questions of a panel of Ofcom experts.
The forum is the first in a series of stakeholder meetings that Ofcom will be holding as part of its engagement plan for the Strategic Review of Digital Communications. For further details, click here.
European Parliament and EU Council back European Commission trade mark reform package.
After two years of inter-institutional discussions, the Commission, the European Parliament and the Council have reached provisional political agreement on the trade mark reform package. The Commission says that the agreed measures will make trade mark registration systems all over the EU “more accessible and efficient for businesses” in terms of lower costs, increased speed, more predictability and greater legal certainty. The reform will improve conditions for businesses to innovate and to benefit from more effective trade mark protection against counterfeits, including non-authentic goods in transit through the EU’s territory.
The key elements of the agreed trade mark reforms are:
- significant reductions of the fees for EU trade marks covering all 28 Member States. The agreed changes will lead to savings of up to 37%, in particular for businesses that seek protection of their registered EU trade marks beyond an initial period of 10 years;
- streamlined, more efficient and harmonised registration procedures across all trade mark offices in the EU;
- strengthened means to fight against counterfeits in particular of goods in transit through the EU’s territory; and
- modernised rules and increased legal certainty by adapting trade mark rules to the modern business environment and clarifying trade mark rights and their limitations.
The political agreement on the trade mark reform package reached by the three institutions in so-called “trilogue discussions” still needs to be formally confirmed by the European Parliament and the Council, but this is expected in the coming weeks. To read the Commission’s press release in full, click here.
Police Intellectual Property Crime Unit (PIPCU) announces over 10 million website diversions as industry marks World IP Day 2015.
PIPCU marked World Intellectual Property Day 2015, which took place on 26 April, by announcing that it has diverted more than 10.3 million illegal music and film sites to an official police warning page since July last year.
Since the unit launched in September 2013, the team has been tackling copyright infringing sites in the UK and across the world to help protect the creative industries. Many of the illegal websites targeted by the unit are diverted to a PIPCU domain suspension page. This is an official message from the City of London Police warning the user that the website they are trying to access is currently under investigation by PIPCU, the only specialist police unit in the world dedicated to tackling online IP crime.
The page also includes signposts to safe and reliable websites that provide legitimate access to music, films and books, as well as a link to the PIPCU website so users can find out more information about the unit. To read PIPCU’s press release in full, click here.
Ofcom publishes update on spectrum above 6 GHz to help lay foundations for next generation mobile.
Ofcom has published an update on spectrum bands above 6 GHz that might be suitable for next generation mobile, referred to as “5G”, the fifth generation of mobile services.
The document summarises responses from Ofcom’s earlier Call for Input in January and sets out its current views on bands and next steps. The update identifies several bands in different parts of the 6 to 100 GHz range that Ofcom believes are candidates for further study for use in the UK.
Ofcom’s goal is to have globally harmonised bands for next generation mobile services. It is currently engaging with other administrations around the world, ahead of these services becoming commercially available in the next five to six years.
Ofcom says that consideration of these bands will now be taken forward in forthcoming international discussions, including the World Radiocommunication Conference-15 (WRC-15) at which the scope of a future WRC-19 agenda item on bands above 6 GHz will be considered.
Ofcom reminds readers that all of this does not guarantee that these bands will be adopted in the future and Ofcom does not rule out considering other options ahead of WRC-15, pending further research and development. To access the update, click here.
Internet Services Providers’ Association gives verdict on three main political parties’ manifestos ahead of General Election.
ISPA says that the UK is “one of the most digitally active economies”. Further, it says, the digital economy has grown significantly since 2010, “all enabled by ISPA member’s continued investments and innovation”. Therefore, it is key that political parties recognise that the UK is fundamentally reliant on the communications sector. According to ISPA, parties need “an ambitious vision for growth of the communications sector”.
In terms of broadband, ISPA welcomes the parties’ recognition of the importance of broadband investment and continued support for superfast rollout. However, it says, all parties should be more ambitious and aim for ubiquitous superfast broadband, with targeted investment and incentives for a competitive private sector to continue to innovate and develop networks.
Whilst ISPA welcomes all main parties’ promises of affordable and widespread access to the internet, it cautions against commitments to treat broadband as a basic utility if this comes with unnecessary and burdensome regulations.
As for surveillance, ISPA welcomes original thinking on internet policy as seen in the Liberal Democrats Digital Bill of Rights, which puts more limits on surveillance and acknowledges that public confidence in the internet risks being undermined by excessive obligations, and underlines the importance of the encryption many online services rely on.
Whilst law enforcement should have reasonable access to data, ISPA says, this should only be after a “rigorous parliamentary debate” with input from industry and civil society, and which is “based on the grounds of proportionality and necessity”.
As for content, ISPA supports the principle of limiting underage access to adult content by website owners. However, it says, the Conservatives’ announcements on blocking and age verification leave “a number of unanswered questions on implementation”.
In ISPA’s view, the Liberal Democrats make a number of interesting proposals on content, such as safeguarding the freedom of the internet, although questions remain over implementation. Labour has not set out policies for online content, and ISPA calls on them to share their overall vision for the sector.
Overall, ISPA says that “since the UK is one of Europe’s most digitally-enabled societies and economies, parties should follow a regulatory regime that works and implement policies that respect intermediary liability and support industry to continue to provide innovative services”. To read ISPA’s press release in full, click here.
Article 29 Data Protection Working Party writes to electronic identification and trust services (EIDAS) expert group on new Regulation.
The Article 29 Working Party writes that it has “taken note” of the new Regulation on electronic identification and trust services for electronic transactions in the internal market (910/2014/EU) and of the repeal of the Electronic Signatures Directive (1999/93/EC).
As some of the key provisions of the new Regulation are expected to be drafted in the coming months, the Working Party asks for the opportunity to comment on the possible data protection impact of those provisions. It says there are, for example, questions over authentication factors and over minimum data sets.
The Working Party therefore asks EIDAS to share the relevant drafts of the Regulation with it, so that it can analyse them with the help of EIDAS’s e-Government subgroup. It also requests a meeting with the members of this subgroup.
The Working Party reassures EIDAS that the aim is ultimately to enable the Working Party to react and offer its advice on any data protection issues arising from the proposed new Regulation prior to its adoption by the Commission. To read the letter in full, click here.
Article 29 Data Protection Working Party holds its 100th plenary meeting.
At the meeting, the European data protection authorities addressed various topics, including:
- Data Protection Reform: members of the Working Party discussed various core topics relating to the draft Regulation in view of the trilogue discussions currently going on between the EU Institutions. Discussions will continue in the coming weeks in order to prepare an Opinion;
- Cooperation: the newly created Cooperation subgroup presented its work programme. The subgroup will work, inter alia, on the classification of European data protection authorities’ activities and on the organisation of thematic workshops. It will follow the work of the Spring Conference and the International Conference;
- Facebook Terms of Services: here the Working Party discussed the organisation of the contact group. The aim of the group will be to coordinate national enforcement activities; and
- Opinion on applicable law: in its judgment in the Google Spain case, the Court of Justice of the European Union made various findings on the territorial scope of the Data Protection Directive (95/46/EC). The Working Party discussed the potential implications of the judgment on its own applicable law Opinion (WP179), which was first adopted in 2010. The Working Party said that it might provide further guidance on this issue during the course of 2015.
The Working Party also discussed data retention, BCR for processors, the Cloud Computing Code of Conduct, PNR EU and PNR Mexico, and the proposed Regulation on electronic identification and trust services for electronic transactions in the internal market (see item above). To read the Working Party’s press release in full, click here.
Ofcom summons provider of local TV services to compliance meeting.
Following a number of Broadcasting Code breaches relating to local television services broadcasting inappropriately scheduled offensive programming, Ofcom has expressed concern at Made TVL’s fundamental misunderstanding about the Code and the obligations it places on broadcasters to protect under-18s. It has therefore requested that Made TVL attend a meeting to discuss compliance issues.
As reported in Issue 277 of the Broadcast Bulletin (20 April 2015), the programmes Reel Film (Made in Tyne and Wear TV service), which showcased an amateur short called Robin Hoodie, and Brits Behind Bars (Made in Cardiff TV service), shown at 6 pm and 7 pm respectively, contained material unsuitable for children’s viewing, for example, masturbation, nudity and the most offensive language in a violent, aggressive context. Ofcom found that a combination of human error in the case of Robin Hoodie, a lack of sufficient warning and poor judgment calls regarding bleeping of offensive language, made a compelling case for a meeting with Made TVL to discuss its compliance arrangements. To read Ofcom’s adjudications on Reel Film and on Brits Behind Bars, click here.
Featured Artists Coalition seeks views on PRS For Music consultation on UK live performance tariff.
As reported in last week’s N2K, PRS For Music has launched a consultation into the UK live performance tariff.
PRS stated that there are major issues with the rate and what the rate is calculated on. According to the FAC, this could mean that in the future, for example, festival rates could be calculated with food and beverage income and sponsorship included.
The FAC says that it will be responding to the consultation before 8 June 2015 and would therefore be interested in hearing stakeholder views. To respond to the FAC’s call for views, send an email to Fiona@thefac.org. To access the PRS For Music consultation, click here.
Committee of Advertising Practice publishes advice on advertising prices for music festivals.
CAP reminds festival organisers and third party ticket sellers that they should bear in mind CAP Code rule 3.18 when advertising prices, which states in part: “Quoted prices must include non-optional taxes, duties, fees and charges that apply to all or most buyers”. Booking fees are highly likely to fall within this definition, and as such prices should never be quoted as, for example, “£180 plus booking fee”, or similar, but rather as a price inclusive of any applicable fees.
If there is an additional charge that cannot be calculated in advance, for example for postage of tickets where there is a flat rate no matter how many tickets are purchased, it should be stated prominently. For example, “£180 per ticket. £2 postage per order” would make clear the consumer’s financial commitment.
CAP also reminds readers that ads for festivals must not promote the consumption of alcohol in an irresponsible manner. Advertisers are reminded that s 18 of the CAP Code that covers alcohol-related marketing applies to all ads featuring alcohol, not just those for alcohol brands or products. For further information, click here.
YouGov poll shows public want tougher regulation of the press.
A YouGov poll of 1717 adults taken over 11 to 12 April 2015 for the Hacked Off Campaign has found that the public do not believe that press behaviour has improved since the phone hacking scandal. Almost three in five wanted tougher regulation of the press, and the same proportion wanted further Parliamentary action to deliver it.
The poll found that almost 59% of the public favoured Parliamentary action to implement Leveson or to bring in statutory regulation if the press does not set up and join what Hacked Off calls “a Leveson-compliant regulator”. Only 19% of respondents thought the press’ own system should be “given more time to show it can work”.
According to the poll, most of the public (64%) believed that press behaviour had not improved since the phone hacking scandal and the Leveson Inquiry. Of these, 24% believed it had worsened. Only 25% thought it had improved.
60% of the public said that they do not have confidence in a self-regulator like IPSO, set up by the press industry, compared to 21% who do. 3% of the public said that they have “a lot of” confidence in a regulator like IPSO.
The poll also showed that public confidence in the press self-regulator had hardly changed since a similar poll in 2013, back in the days of the PCC.
Only 14% of the public agreed with the press that Leveson’s proposals should be rejected and that the press should stick with their own non-Leveson system. In fact, 17% felt that Leveson did not go far enough with his proposals. However, the majority of those who expressed a view (47% overall) backed Leveson’s proposals specifically.
More than a third of respondents felt that Ed Miliband had suffered negative press coverage because of his stance on press behaviour and regulation. Of these respondents, 70% thought the press was unreasonable for attacking him on these grounds. A majority of the public (51%) believed that the press coverage of Ed Miliband was negative, whereas just 23% believed press coverage of David Cameron was negative.
Of those who had not made up their minds on Ed Miliband one way or the other, they were found to be three times more likely to respect him because of his views on press regulation. For further information, click here.
British Film Institute publishes figures showing great first year for Video Games Tax Relief.
The BFI has released figures on games qualifying for games tax relief in the UK for the first year of tax relief (April 2014 to March 2015).
The figures reveal how many games qualified for Video Games Tax Relief in its first year. Since the launch in April 2014, 19 games have received final certification and 48 have received interim certification, making a total of 67 games.
Between them, these games have a total budget of £182.6 million, almost all of which, £173.1 million, is to be spent in the UK or Europe. As the effective rate of relief is roughly 20% of the game’s UK budget, these figures mean that, in the first year alone, the scheme has created roughly £34.6 million of eventual benefit for the UK games industry. It is clearly, therefore, already having a strong impact.
CEO of Ukie (which supports the UK’s games and interactive entertainment industry), Dr Jo Twist, commented: “It’s very encouraging to see such positive figures highlighting the impact of the games tax relief in its first year. Our sector is an economic and cultural powerhouse and we will continue to ensure games companies across the country, big and small, take full advantage of the scheme as well as showcase the ecosystem we now have to international investors. We need to keep up this momentum to create an even better business environment for games companies to thrive and grow”.
The EEA/UK spend for games with final certification was £14.4 million on a total budget of £15.1 million (95.2%), meaning each game had an average EEA/UK spend of £758,000. The EEA/UK spend of the games with interim certification was £158.7 million, on a total budget of £167.5 million (94.8%). To read Ukie’s press release in full and to access the BFI figures, click here.
Committee of Advertising Practice reminds marketers of rules on using the word “free”.
CAP reminds readers that the ASA regularly considers complaints about ads for products or services described as free, but which rely on inflated prices or come with conditions that are not made clear.
The hidden costs associated with other types of “free” trial offers can end up costing consumers a considerable sum of money, CAP says. The ASA has undertaken action against a number of companies for misleading consumers as to the charges they will face when a “free” trial comes to an end.
Given that the word “free” is likely to be used in numerous ways, CAP and BCAP have produced joint guidance for marketers. The rules on using “free” in marketing communications are mirrored in the broadcast and non-broadcast Codes.
The guidance states that products and services can only be described as “free” if consumers are not required to pay for anything other than the unavoidable cost of responding. This rule is designed to prevent marketers from inflating the unavoidable costs that render the “free” claim misleading.
Further, the word “free” must not be used in instances where the price of the item (which must be purchased to take advantage of the free offer), has been increased above its normal cost. The ASA previously ruled on a complaint about an ad for a magazine subscription offering readers a “free gift” because it found that the subscription was available without the “free gifts” at a lower price.
A package comprises a pre-arranged combination of features where customers cannot exercise genuine choice on how many elements of the package they receive for the price.
Marketers can describe a feature of a bundle or package as being free (if the price of the package has not increased) if that feature has been recently added and is not intrinsic to the product or service being advertised. However, once that inclusion becomes the norm rather than an additional benefit, it is no longer “free”. To access the guidance, click here.
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